Textualism Defeats Intentionalism in Ohio; The Rule of Law Says “Thank You!”
Textualists may have suffered a major loss in the Supreme Court last week, but they won a small victory in an Ohio appellate court this week — even though the court (as courts often do) misdescribed what it was doing. It is the intent of this post to explain the issue, describe the court’s resolution, and show how the proper analysis rejects any examination of “legislative intent” in favor of a Scalia/Patterico form of textualism — one that says “we don’t care what the legislature meant; we just care what it said.”
The Washington Post reports that Andrea Cammelleri was cited for parking her truck on a street for more than 24 hours. The relevant ordinance said it was illegal to park “any motor vehicle camper, trailer, farm implement and/or non-motorized vehicle” on a street for more than 24 hours.
Cammelleri argued that her truck is not a “motor vehicle camper” — nor any other sort of vehicle described in the ordinance. The trial court found that the ordinance meant to say “motor vehicle, camper, trailer,” etc. They just forgot the comma, the judge said. But you can’t look at what they actually wrote, the judge said — you have to go with what they intended.
Cammelleri appealed, and the court of appeal ruled in her favor. The court explained “we must read words and phrases in context and construe them in accordance with rules of grammar and common usage.” The court further observed: “According to ordinary grammar rules, items in a series are normally separated by commas.” Since “motor vehicle” and “camper” were not separated by a comma, under ordinary grammar rules, a reasonable citizen reading the law would understand “motor vehicle camper” to be one type of motor vehicle, not including a truck. Therefore, Cammalleri’s truck was not covered by the ordinance, and she did nothing wrong.
So far so good. But where the court went off the rails is in suggesting, as courts often do, that theirs was a search for “legislative intent”: “The paramount concern is determining legislative intent in enacting the statute.”
No, no, a thousand times, NO!
If the rule of law means anything, a statute must be written in such a way that a citizen can understand what his obligations are, according to the written statute.
If I were a judge in this case, and the prosecuting attorney offered to present evidence of the legislators’ intent, I would rule that evidence inadmissible, as being wholly irrelevant to the proper interpretation of the statute.
Let’s say that they offered to have each member of the local legislature come to court and swear on a stack of bibles that they meant for all motor vehicles to be covered. Denied; irrelevant!
Let’s say that they had videos of floor speeches, where every legislator got up and proclaimed how wonderful the ordinance would be, because it would prevent every motor vehicle in the town from parking in the same place for more than 24 hours. Denied; irrelevant!
“We intended for all motor vehicles to be covered!” Lovely; don’t care. “Our purpose was to unclog the streets!” Wonderful; still don’t care!
Why would I refuse to hear such testimony? Because, as a judge, I don’t care what the legislature meant. I don’t care what the legislature intended. I don’t care about the legislators’ purpose. I just care what the legislature wrote.
In short: what the legislators meant doesn’t matter to a judge’s proper interpretation of the text. The legislators’ intentions are irrelevant when it comes to determining the proper way to interpret the text for purposes of enforcing it in court.
The court’s use of the phrase “common usage” here is key. The proper way to examine the language is to discern how a reasonable audience would read the text. That is the only analysis consistent with the rule of law. That is because the government, in arrogating to itself the power to declare obligations on the part of the citizenry, has a duty to make those obligations plain. If they fail to do so, the proper interpretation of their words has zero (zip! zilch! nada!) to do with their unexpressed intent, and everything to do with how a reasonable audience (the citizenry subject to the law) would interpret those words.
Note here that the court does not get to employ the cute, incoherent, meaningless dodge of saying “we are sending this back to the legislature to fix.” They can declare that the legislature has the option of fixing the statute in the future, of course — and indeed the court says in this very case: “If the village desires a different reading, it should amend the ordinance and insert a comma between the phrase ‘motor vehicle’ and the word ‘camper.’”
But — and this is hugely important — the court cannot use that as a way to dodge its duty to interpret the language in front of it. This court had to decide: was Cammelleri guilty or not? Were they going to apply what was written, or apply some secret, poorly expressed intent/purpose to override the plain meaning of the ordinance?
Are we going to go with the text, or with “intent”? The court had to confront that issue and make a decision.
The court did right. It applied plain meaning. It refused to enforce some secret, unexpressed intent or purpose, and went with the text.
In short, even if the judges expressed their ruling with reference to “intent,” this explanation was wrong. One thousand unanimous legislators expressing their intent or purpose could not override the plain language of the statute. Even if the judge believed them, their intent would be irrelevant.
And the court’s result favored textualism over intentionalism or purposivism.
And properly so. For textualism is the only legal interpretive method consistent with the rule of law.
Period.
Thanks to Rick W.
first!
MD in Philly (f9371b) — 7/2/2015 @ 8:42 pmnow i’ll read the post
MD in Philly (f9371b) — 7/2/2015 @ 8:42 pmHeh.
Patterico (3cc0c1) — 7/2/2015 @ 8:44 pmHmmm…
MD in Philly (f9371b) — 7/2/2015 @ 8:47 pmthey got it right, but then reasoned with the logical clarity of the original law
Also: had they refused to hear the case, the improper ruling would have been left standing.
There is no dodging the issue by refusing to hear it.
There is no dodging the issue by sending it back for a “fix.”
You have text and you have proffered “intent.” You must choose.
The Rule of Law demands that you go with the text.
Patterico (3cc0c1) — 7/2/2015 @ 8:48 pmThat’s what high school teachers do…at least that is what they used to do, take it to mean what it says and hand it back.
MD in Philly (f9371b) — 7/2/2015 @ 8:51 pmHeh! that is cheating!
seeRpea (0cf003) — 7/2/2015 @ 8:52 pmThis makes me fearful for the future given the state of grammar these days.
Dejectedhead (152876) — 7/2/2015 @ 8:54 pmPatterico, I think you’ve misunderstood the whole “send it back to be fixed” concept. As I understand it, that is exactly what this court did. There’s no question that the law has to be fixed. It can’t stay as it is. But the court said “it’s not our job; our union contract doesn’t allow us to do it. It means what it says, so either you fix it or it stays broken.”
Milhouse (a04cc3) — 7/2/2015 @ 9:27 pmI agree that the text of the statute should be the determining factor, but I can think of one case, and only one case, where it would be appropriate to look at legislative intent: a scrivener error.
If the legislative history were to show that the law as passed had a comma, but it was omitted during later publication of the law, then the intended text that was passed should be followed.
Observer (a74aed) — 7/2/2015 @ 9:30 pmI guess it depends on who says it. I have seen that used by a certain “intentionalist” and it looks to me to be a dodge, employed to avoid saying “yeah, you interpret the language according to the text rather than the intent.” Because saying that, while correct, would be embarrassing for an “intentionalist” to say in quite those words.
Patterico (3cc0c1) — 7/2/2015 @ 9:33 pmAnd what does that mean to a citizen who follows the law as written and is prosecuted according to a secret, unexpressed intent? I say that citizen follows the rule of law when following the law as written, and interpreting it any other way violates the rule of law.
Patterico (3cc0c1) — 7/2/2015 @ 9:35 pmWhy? No matter how that comma ended up omitted from the ordinance, the fact is the public was not on notice that it was illegal to leave motor vehicles parked on the street for more than 24 hours. How was Ms Cammelleri to know that she had to move her truck if no published ordinance said so? It’s bad enough that we are all presumed to have read and understood all the published laws, which is an absurd notion all on its own, but are we also presumed to know all the unpublished laws?
Milhouse (a04cc3) — 7/2/2015 @ 9:38 pmIn other words, I’m good with the way you express it. That’s exactly right: as long as you recognize that 1) the court has to rule in the meantime and 2) that ruling must be according to the text and not unexpressed intent — in that case, I agree entirely.
But that’s not what I think “intentionalists” mean when they say it. Unless they “intend” for “intentionalism” to be another word for reading the text as written and ignoring unexpressed intent. In which case, that’s an odd word to use to express what is, in reality, textualism.
Patterico (3cc0c1) — 7/2/2015 @ 9:39 pmPrecisely so.
Patterico (3cc0c1) — 7/2/2015 @ 9:40 pm“I agree that the text of the statute should be the determining factor, but I can think of one case, and only one case, where it would be appropriate to look at legislative intent: a scrivener error.”
But isn’t that why the Supreme Court upheld Obamacare? Oh, wait.
Ag80 (eb6ffa) — 7/2/2015 @ 9:41 pmrule of law?
ain’t nobody got time for that.
PS: Pat, please check your personal FB page. i shared a meme there i think you’ll like
redc1c4 (a6e73d) — 7/2/2015 @ 10:43 pmQuestion: Suppose that there were four sections of this law and in 3 of the four they had all the commas, but in one the printer left it out. It was actually in the engrossed version, but the company that printed all the Motor Vehicle Code books (which were also the basis for the web version) missed a comma in one place in the law.
It is quite provably (from the engrossed version in the Legislature’s files) a typo and given the other parts of the law being printed correctly, “common sense” would lead anyone to believe that the comma was intended here, too.
However, the provision with the typo is the one that she violated.
Is textualism derailed so easily?
Kevin M (25bbee) — 7/3/2015 @ 1:03 amTaking it a bit further, suppose they had all the commas correct, but had misspelled “motor” as “moter.” Would you accept her claim that she did not have a “moter vehicle”?
Kevin M (25bbee) — 7/3/2015 @ 1:06 amThe idea that the public MUST be able to rely the law as publicly distributed brings up another issue: can a law be so complex that this doesn’t matter? Does it have to be understandable by a citizen? Does it have to be understandable by a lawyer picked at random? Is it sufficient that it is understood by an expert in that area of the law? Suppose two such disagree?
Kevin M (25bbee) — 7/3/2015 @ 1:19 amStrike #18. Asked and answered.
Kevin M (25bbee) — 7/3/2015 @ 1:19 amPlease tell me why “intentionalism” matters for every law, but is totally ignored when doing constitutional analysis?
Enquiring minds would like to know.
Darth Chocolate (4ea19a) — 7/3/2015 @ 3:02 amI would suggest the original law was written clearly. Many jurisdictions have laws like this specifically designed to keep non normal vehicles from being parked long term on the street. It is the jurisdiction that chose to bend the rules.
Davod (f3a711) — 7/3/2015 @ 3:48 amKevin M.
Richard Aubrey (f6d8de) — 7/3/2015 @ 4:33 amI suggest your question could be broadened in two ways:
1. Knowing the law exists in the first place.
2. “WTF!!! You mean THAT’S illegal? You have got to be effing kidding me! Who thought of such a crazy idea? No way on earth should the law be involved. That’s crazy!”
We are in, as some have said, ham sandwich nation. Three felonies a day.
Asking for a friend: New roof, gutters and downspouts. Is anybody sure, absolutely certaion, that my friend hasn’t broken some law or other having to do with albedo of roofs or disposal of roof funoff?
runoff.
Richard Aubrey (f6d8de) — 7/3/2015 @ 4:33 amDavod, I am inclined to agree with you because that would also explain the intentionalism language in the opinion.
nk (dbc370) — 7/3/2015 @ 5:05 amIt’s too bad that these limits on justices seem to evaporate once they are seated on the SCOTUS. 🙁
Patricia (5fc097) — 7/3/2015 @ 8:37 amOh, those pesky commas, to be or not to be. Reminds me of my mom’s story re when she worked for a very brilliant chap who kept saying he wished they had left the “damned comma” off the typewriter.
Judy Eaton (29f139) — 7/3/2015 @ 10:57 amHe held a number of patents in radio and TV in their infancy. I found it amusing because, despite
his brilliance, she said he was quite forgetful and could not remember people’s names so
everyone was “honey.” The good ‘ol days.
If “common usage” is applied, future laws should be fun.
Gazzer (ee3742) — 7/3/2015 @ 10:57 amSo, I’m, like, it is so illegal to park a motor vehicle camper for more than 24 hours. And he was, like, but was it, like, a camper? And I was, like…
Bishop Madison ran a post last January that included comments from Justice Kagan about intentionalism, expressing agreement with the points Patterico made in this post. However, I rather think that what she said back then bears little relationship to her decision in the recent King v Burwell case.
http://bishopmadison.blogspot.com/2015/01/justice-kagan-rebuts-paul-krugmans.html
Justice Kagan properly rejected the view that jurists may ignore a statute’s plain language because “anomalies” in a statute suggest that Congress really meant something else. As the Justice (and former Solicitor General) explained: “This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that … Congress ‘must have intended something’ other than what the statute’s text actually.”
pa (031813) — 7/3/2015 @ 2:13 pmIndeed, one pundit has suggested that, given this approach to statutory interpretation, Justice Kagan may be a sixth vote, along with Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito, to reverse the Fourth Circuit.
In this case, sure, the text is all that matters. But when the text is vague, isn’t it reasonable to consider what the legislators meant? For example, the 14th Amendment doesn’t have any clear meaning or limits if you can’t consider that it was written just after the Civil War to protect people from discrimination by the state based on race.
David Pittelli (b77425) — 7/4/2015 @ 5:54 amTwo losers and a fat Democrat from Jersey
mojo (a3d457) — 7/4/2015 @ 6:19 pmI agree with David Pitelli above.
I was involved in a three week trial primarily considering the following section in the New Zealand Credit Contracts and Consumer Finance Act 2003: “In determining whether an establishment fee is unreasonable, the court must have regard to: a.) whether the amount of the fee is equal to or less than the creditor’s reasonable costs in connection with the application for credit, processing and considering that application, documenting the consumer credit contract, and advancing the credit”. The argument wasn’t about what the Court considered to be “reasonable costs”, but about what costs could properly be said to be “in connection with the application for credit” etc.
The defendant finance company argued that, as there business was writing consumer finance loans, any cost of their business had a connection with the activities listed. The plaintiff (Consumer regulatory body) argued that there had to be a direct connection with the activites carried out for the individual lender. We had conflicting evidence from 4 different expert accountants as to how they would interpret these words.
How do you propose we figure out what “in connection with” means, and resolve the difference in interpretation between experts in the field, without some recourse to the overall purpose of the legislation and Parliament’s intent in enacting it?
FYI, the regulator won at trial and on appeal.
Ian Auld (f475cc) — 7/6/2015 @ 6:34 pm